Beyond A Border Solution: How to Build a Humanitarian Protection System That Won’t Break

AIC, May 3, 2023

"For generations, the United States has been a place of safe haven for people seeking freedom and safety. In 1980, Congress passed the Refugee Act, codifying basic refugee protections into law and enshrining a global commitment to asylum which emerged from the tragedy of the Holocaust. In the decades since then, hundreds of thousands of refugees and asylees have been granted status, strengthening communities around the nation, contributing economically, and enriching the national fabric.

But in the 21st century, a global displacement crisis is affecting nearly every country in the world. Multiple nations across the Western Hemisphere have become destabilized due to a wide variety of factors, including rising authoritarianism, political assassinations, natural disasters, powerful transnational criminal organizations, climate change, and the global socioeconomic shocks of the COVID-19 pandemic. The end result is humanitarian migration at levels far above what the 20th-century system can handle.

Presidential administrations of both parties have failed to meet this challenge. Instead of an orderly, humane, and consistent approach to humanitarian protection and border management, we have been left with a dysfunctional system that serves the needs of no one: not the government, border communities, or asylum seekers themselves.

Today, the U.S. government faces an enormous challenge. The number of asylum seekers seeking to enter each day is significantly higher than the number the United States can process at official border crossings. The location and manner of crossings varies widely across the border, often changing unpredictably based on misinformation, rumor, or the demands of powerful transnational criminal organizations which maintain control over many of the migration routes with a bloody fist. The system is constantly at risk of bottlenecks and overcrowding, building the perception of chaos at the border. And inside the United States, underfunding, neglect, and deliberate sabotage have left the adjudicatory process in shambles.

Rather than making a sustained investment into building a better system, past presidential administrations have attempted over and over again to instead use aggressive enforcement- and deterrence-based policies in hopes of reducing the number of people who are permitted to apply. The failure of this approach is manifest: No one thinks that the problem has been solved or even alleviated. Making matters worse, constant shifts in policy due to international negotiations, federal litigation, and border agents’ own discretion make it virtually impossible to articulate what the current policy toward asylum seekers at the southern border actually is.

Crucially, there is still hope. Restoring our humanitarian protection systems and breaking the cycle of crises and crackdowns is not only possible, but within reach. However, to do so, we need a major shift in thinking and policymaking. Politicians must abandon a fantasy of short-term solutionism and acknowledge that only sustained investment over a period of time can realistically address these 21st century challenges. Therefore, short-term action must focus on establishing a viable path towards a better system. In the long term, with significant investment, we can create a flexible, orderly, and safe asylum process.

Rebuilding a functional system does not require a radical overhaul of U.S. immigration law. Nor will it lead to open borders. Even if every recommendation in this report is implemented, those without meritorious claims will still be deemed ineligible for relief and ordered deported. But taking that reality seriously also obligates the government to get it right — and ensure that no one is deported to a country where they will be persecuted. Adherence to the rule of law means both that those who seek to live here agree to abide by the government’s rulings, and in return that the government upholds our longstanding commitment to respect human rights and international humanitarian agreements as well as provide a fair day in court for all those who seek it.

Creating and funding a flexible, orderly, and safe asylum system will reduce both irregular entries and unjust outcomes. Investment in dedicated humanitarian processing infrastructure at the border and in receiving communities will reduce unexpected fiscal burdens, limit strain on law enforcement resources, and improve human rights. Moreover, a humanitarian protection system that is purged of arbitrary delays and inconsistent outcomes will produce fairer and more expeditious results. Asylum seekers with meritorious claims will be more likely to prevail when provided with a meaningful opportunity to present them. Conversely, a fair, transparent, and expeditious asylum process may reduce claims from those without meritorious cases, and those who are denied will be more likely to accept negative results from a fair and transparent process.

A revitalized modern humanitarian protection system will also dampen political backlash to the concept of asylum in a time of rising anti-migrant sentiment. While overall support for providing asylum continues to poll above 50 percent, chaotic scenes at the border have dampened public support for asylum. And while some critics will oppose any measures that permit asylum seekers to enter the country, the right to seek asylum is central to this country’s historical commitment to welcoming those fleeing persecution and to most Americans’ understanding of their nation as a global and moral leader. Turning away from asylum seekers would be a more radical break than improving the system to support them.

To begin the work on creating a viable path towards a better system, we provide the following recommendations..."